Copyright and Algorithms

While in 2011 the “case of the macaque[monkey] selfie” went viral on wordwide social networks, recent exchanges between the Luxembourg Federation of Authors and Composers (Fédération Luxembourgeoise des Auteurs et Compositeurs), the Association of Authors, Composers and Musical Publishers’ Successor Advisory Committee (Commission Consultative des Ayants Droits de la Société des Auteurs, Compositeurs et Editeurs Musicaux or SACEM’s CCAD) and the Culture Ministry in 2017 push us to ask ourselves about the possibility of an algorithm being a copyright holder for its creations, and thus becoming a member of an association for authors and composers.

In that regard, the Culture Ministry held, probably with respect to the start-up mentioned here, that “AIVA is a Luxembourg start-up the algorithmic composition program of which is officially recognized as a composer with the SACEM”. In response, Mr. David LABORIER, President of the SACEM’s CCAD took up his pen to remind interested parties that “copyright is attributed to natural persons […]. An algorithm itself is not a member of an association of collective copyright management, it is a natural person member of the start-up AIVA Technologies who is, and [it is the same person] who registers the works under the pseudonym of AIVA”.

The question raised here is of interest in the face of the European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL)). Thus, among the list of legal solutions contemplated to deal with the development of robotics and artificial intelligence, one finds, in point 59, f) of that resolution, the idea that:

“the creation, over time, of legal personality specific to robots, so that at least the most sophisticated autonomous robots can be considered responsible electronic persons, liable for repairing all damage caused to a third party ; it would be foreseeable to confer electronic personality on any robot that makes autonomous decisions or that independently interacts with third parties.”

To that end, according to the resolution’s annex, notions of autonomy and intelligence of robots should in particular be determined as a function of “the form and the outside casing” of the latter.

The recognition of an algorithm, an immaterial entity often defined as a group of operating rules, as having legal personality, and thus having the possibility to hold copyrights by belonging to an association of authors and composers, does not seem permissible under current law and the SACEM’s reaction seems perfectly justified.

However, the conferring of legal personality would be the result of a law and nothing would prevent legislators in the future from conferring legal personality on an algorithm, as they were able to do in the past with respect to legal persons.

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